A Deal with the Devil: Peru’s Fujimori Pardon

This article was originally published by NACLA and is republished with permission. See the original here.

“This is proof that even for the poor there can be justice,” Raida Cóndor commented to me minutes after a court found the man responsible for the 1992 murder of her son, Armando Amaro Cóndor, guilty and sentenced him to 25 years in prison. That was April, 2009; the man was former dictator Alberto Fujimori.

After a decade in power and several years as a fugitive, Fujimori was extradited from Chile back to Peru in 2007 and put on trial for several human rights crimes carried out by a military death squad known as the Colina Group. The court found that Fujimori was responsible for the creation and operation of the Colina Group, and convicted him as the indirect perpetrator of the murder of a professor and nine students—including Armando Amaro Cóndor—from La Cantuta University, as well as the 1991 massacre of 15 people in Barrios Altos, and the 1992 kidnappings of journalist Gustavo Gorriti and businessman Samuel Dyer. The court found that the Colina Group committed a series of other killings, but because of the rules of extradition between Peru and Chile, Peruvian authorities could only prosecute Fujimori when the Chilean Supreme Court authorizes it.

As the first democratically-elected head of state to be convicted of grave human rights violations in his own country, the Fujimori trial and conviction were hailed around the world as an historic and important win for global justice.

Eight years later, on Christmas Eve 2017, President Pedro Pablo Kuczynski (PPK) announced that, in the name of national reconciliation and governability, he was granting Fujimori a humanitarian pardon.

What came next did not look much like reconciliation.

Within hours, despite the fact that it was Christmas Eve, hundreds of people flooded to the streets in protest. Carrying signs with photographs of the faces of the victims of the Fujimori government, protesters in Lima and in cities across the country defied police barricades to express their outrage. Police met the protests with tear gas and there were some clashes with protesters. Protests continued on Christmas, and families of the victims called for a demonstration on December 28, which an estimated 30,000 people attended. There was a massive police presence, more tear gas, and four protesters were arrested. Protesters also marched in cities across the country and around the world, from Sydney to Paris.

Fujimori supporters, meanwhile, defiantly defended the pardon as a long-awaited act of justice. Keiko Fujimori, Alberto’s daughter and 2016 presidential candidate, who lost to Pedro Pablo Kuczynski by a narrow margin, had long argued that the trials against her father were politically motivated, and steadfastly maintained his innocence. On social media, Fujimori supporters attacked those protesting the pardon, calling them terrorists and Shining Path sympathizers, in reference to the Maoist insurgent movement that launched its violent revolution in 1980. Such scare tactics were used and perfected by the Fujimori regime to delegitimize any dissent or oppositional activity by associating them with the widely despised Shining Path. Fujimori’s supporters directed special aim at the youths protesting the pardon, dismissing their objections since they did not directly experience the period of political violence that rocked Peru between 1980 and 2000, which a truth commission estimated resulted in the death of 70,000 Peruvians, the vast majority of them poor, indigenous, rural farmers.

A Deal with the Devil

The Fujimori faithful aside, most political observers—including some members of Kuczynski’s own party—view the pardon as a crude political bargain. Three days before his Christmas Eve announcement, Kuczynski narrowly avoided being removed from office. The Fuerza Popular (Popular Force) party led by Keiko Fujimori, which holds a majority in Congress, had been pushing hard to impeach Kuczynski, alleging “permanent moral incapacity,” after allegations surfaced that he had improperly received payments from the Brazilian firm Odebrecht when he was Minister of Economy and Prime Minister under the Alejandro Toledo administration (2001-2006), and lied about it.

Fuerza Popular has used its majority in Congress to make governing difficult for Kuczynski, censuring several ministers over the past year, and in September, its entire cabinet of ministers. Fuerza Popular was also making a play to control the Constitutional Court by removing some of its judges and replacing them with friendlier ones, and by impeaching the Attorney General, who had just opened a special investigation into Keiko Fujimori over allegations of illegal campaign contributions from Odebrecht. Some view these efforts as steps toward a “parliamentary coup”—not unlike what occurred in Brazil when Dilma Rouseff was forced from office in 2016— that could lead to Keiko Fujimori’s ascension to the presidency that Peru’s voters have twice denied her.

The full story is still being written. But journalists have uncovered evidence to suggest that Kuzczynski had long intended to pardon Fujimori but could not find the right time or way to do so.

The impeachment proceedings began on the morning of December 21 with an impassioned defense of democratic institutions by Kuczynski and his lawyer Alberto Borea, a prominent leader of the anti-Fujimori struggle in the 1990s. For several hours, different members of Congress elucidated their reasons for supporting or rejecting Kuzcynski’s impeachment. The vote was hair-splittingly close. The Left was split down the middle, with half supporting impeachment and the other half fearing that if the impeachment succeeded, what would follow would be a government controlled by the Fujimoristas.

Late in the afternoon, in a stunning twist, Kenji Fujimori, Alberto Fujimori’s son, who elected to Congress in 2016, led a break-away group of ten legislators from Fuerza Popular who voted against impeachment, effectively saving Kuzcynski’s political skin. Shortly after, Kenji tweeted a clip from The Lion King showing Simba, the reluctant heir to the Lion King’s throne, assuming his destiny triumphantly, with the comment, “The time has come!” Whether he was referring to his own leadership of Fuerza Popular, or the release of his father —or both—was the talk of the town.

Kuzcynski and several of his ministers, most notably Prime Minster Mercedes Aráoz, had repeatedly assured the public that his government was not considering granting a pardon from Fujimori in exchange for Kenji Fujimori’s vote against impeachment. On the day of Kuczynski’s impeachment trial in Congress, a pro-Fujimori journalist published a report by the prison medical board recommending a humanitarian pardon for Fujimori, giving rise to speculation that a quid pro quo was in the making. But Aráoz stated categorically: “The PPK government does not negotiate pardons.” The Ministry of Justice denied that it had any knowledge of such a report, leading many to discard the news as speculative.

Yet, just three days later, that’s exactly what happened—Kuczynski announced his Christmas Eve pardon for Fujimori. The full story is still being written. But journalists have uncovered evidence to suggest that Kuzczynski had long intended to pardon Fujimori but could not find the right time or way to do so. The threat of impeachment led him to cast aside any moral qualms about pardoning Fujimori even if he did not meet the legal requirements for a humanitarian pardon.

Not once did President Kuczynski mention Fujimori’s victims. Not once did he call upon Fujimori to apologize for his crimes.

Kuzcynski’s attempt to clarify his motives—and presumably dispel criticism—on Christmas day in a poorly produced videotaped speech only aggravated matters. He began by saying that granting the pardon was “probably the most difficult decision of my life.” He continued: “This is about the health and life of an ex-president of Peru, who, having committed excesses and serious errors, was convicted and has fulfilled 12 years of his [25-year] sentence.” Despite these transgressions, Kuczynski said, the Fujimori government “contributed to the progress of the nation” and urged his compatriots, and especially the youth, to accept the pardon as a necessary step towards national reconciliation.

The backlash was immediate. Kuczynski’s critics noted, correctly, that Fujimori had been convicted not for “excesses” or “errors” but for crimes, including aggravated homicide and kidnapping, that the Inter-American Court of Human Rights, as well as the Supreme Court tribunal that convicted him, said constitute crimes against humanity, for which no amnesty, pardon, or other remedy can be applied, according to international law.

Not once did President Kuczynski mention Fujimori’s victims. Not once did he call upon Fujimori to apologize for his crimes. Not once did he mention the importance of the struggle for truth, justice, and the rule of law that Raida Cóndor and other families of victims have dedicated their lives in an effort to vindicate the memory of their missing loved ones. Not once did he acknowledge the fact that the remains of five of the students from La Cantuta—along with thousands of other victims of enforced disappearance—remain missing.

Meanwhile, Fujimori published a video of his own. He expressed his gratitude to President Kuzcynski for pardoning him. “I know that the results of government were well-received by some, but I am aware that I defrauded others,” he continued. “I ask them to forgive me, from the bottom of my heart.” He did not mention, and has never acknowledged, his responsibility for the crimes of which he was convicted, nor did he ask for forgiveness of the families of the victims.

Schisms within fujimorismo

The politics behind the impeachment and the pardon are complex and not for the faint of heart. Keiko Fujimori, who entered politics with the primary stated objective of securing her father’s release from prison, had seemed less driven by that imperative as her political career developed. She had grown fond of her role as leader of fujimorismo, it seemed, and realized that if her father were freed, she would play second fiddle to him. This seemed clear when Fuerza Popular rejected Kuzcynski’s overtures to release Fujimori not through a pardon but through a law that would allow convicts over the age of 75 to fulfill their sentences under house arrest. Keiko’s wing of Fuerza Popular wanted Fujimori to be released “por la puerta grande”—through the front door—preferably through the nullification of the 2009 sentence, with a presidential pardon being the second-best option. Keiko went from being a frequent visitor to Barbadillo, the special forces police base where Fujimori was serving his sentence in a prison built especially for him, to rarely visiting him at all.

Presidential candidate Keiko Fujimori waves to journalists as she leaves her home in Lima, Peru, Thursday, June 9, 2016. (AP Photo/Martin Mejia)

Kenji, furious at this missed opportunity to free his father, remained dedicated to that singular objective. This drove a wedge of Shakespearean dimensions between the siblings that resulted in Kenji being sanctioned twice by Fuerza Popular leadership. It is telling that Kenji released a video-recording of him by his father’s hospital bedside when he received the news of the humanitarian pardon, without his sister. On January 4, murals and billboards appeared in different parts of the country with an anime-style caricature of Kenji and Alberto Fujimori, side by side, smiling, no Keiko in sight. Some read: “Reconciliation – Thanks PPK”; others say, “Fujimori Freedom – Thanks PPK.”

An investigative report published by Angel Páez reveals that the pardon was in the making for the better part of 2017, and that the denials by Kuzcynski and other members of his entourage that a pardon was not in the works were pure political deception. Faced with a Fujimori-controlled Congress, Kuzcynski and some of his closest advisors seem to have effectively decided that the path to governability—and to assuring Kuczynski’s political survival—was to provoke a rift in the Fuerza Popular congressional bloc. Kuzcynski had long ago decided that a pardon for Fujimori was the means to achieve this end, according to Páez’s report.

Ministers who were steadfastly opposed to a pardon for Fujimori that did not meet the legal requirements were forced out in order to make way for others who would have no compunctions about granting the pardon. This was particularly the case for former Minister of Justice Marisol Pérez Tello, who was forced out in September. Páez notes that her successor, Enrique Mendoza Ramírez, played a key role in pushing through the Christmas Eve pardon.

In the end, Kuzcynski used the pardon not to divide and conquer, but rather to save himself from impeachment. As many observers have noted, Kuzcynski is now at the mercy of the Fujimori bloc. The future remains uncertain. Many fear that the Fujimoristas could make another go at removing Kuzcynski from office.

Challenges to the humanitarian pardon

Opposition to the Fujimori pardon will continue in the streets and plazas of Peru. Another protest is scheduled for January 11. In the meantime, the families of the victims and the human rights organizations that represent them have initiated the legal battle to revoke the pardon, which they view as illegal.

Demonstrators march during a protest against the pardon of former President Alberto Fujimori holding photographs of people who disappeared during his government, in Lima, Peru, Thursday, Dec. 28, 2017 (AP Photo/Martin Mejia).

Defenders of the pardon insist that the president has the absolute right to pardon whomever he sees fit, but human rights lawyers say that in Peru, this is not true. Pardons must be clearly and logically reasoned, and must abide by the constitution and by Peru’s international obligations. Aside from the political nature of the pardon, human rights lawyers have identified a series of legal problems with the pardon and a clear strategy to revoke it.

First, individuals convicted of aggravated kidnapping, as Fujimori was, are not eligible for a pardon, as established by Law 26478, ironically, a law signed into being by Fujimori himself. Therefore the only option for a legal pardon for Fujimori would be a humanitarian pardon. Peruvian law establishes that a humanitarian pardon can be granted to individuals who suffer “terminal illness or illnesses that while not terminal are irreversible or degenerative” and that are worsened as a result of extant prison conditions.

The decree granting the pardon refers to a report by the prison medical board that outlines Fujimori’s health issues and asserts that his prison conditions aggravate those issues. Human rights groups argue that the medical board report does not provide clear and sufficient evidence for such conclusions. On the contrary, they say, there is clear evidence that Fujimori does not meet the medical requirements for a humanitarian law outlined in Peruvian law. Moreover, Fujimori’s prison conditions are hardly lacking: his “cell” consists of a custom-built chalet in a special forces police base where until recently he was the sole prisoner (five months ago he was joined by Ollanta Humala, in prison for corruption charges related to Odebrecht). He has been consistently provided medical care whenever needed.

Human rights lawyers also pointed out serious irregularities with the medical board that reviewed Fujimori’s health and recommended the humanitarian pardon, including the fact that Fujimori’s personal physician sits on that board, constituting a clear conflict of interest and violating the principle of impartiality and, therefore, due process.

Kuzcynski not only granted Fujimori a humanitarian pardon but also a derecho de gracia (right to pardon), which is intended to prevent future prosecutions against him. Human rights lawyer and executive director of the Peruvian human rights organization APRODEH Gloria Cano told me that Fujimori is currently being prosecuted for the 1992 Pativilca case, in which six people were killed by the Colina Group, which has not yet come to trial. Cano represents the victims in the case. Peruvian law outlines a specific time frame under which a derecho de gracia can be applied in such instances, and Fujimori does not meet the criteria. In response, Cano tells me, she has filed a petition before the National Criminal Court, which is hearing the case, to review the Fujimori pardon to determine if it violates the constitution and Peru’s international obligations. If the court finds that it does, it could revoke Fujimori’s pardon. Rights groups may also seek to have the pardon nullified by taking it to the Constitutional Court, which in the past has revoked humanitarian pardons that were granted fraudulently.

“Consequently, from the perspective of Peru’s international human rights obligations, the pardon is invalid and should be nullified by the Inter-American Court.”

Finally, the Fujimori pardon violates international law. Fujimori was convicted based on two emblematic cases of human rights violations, the Barrios Alto massacre and the La Cantuta killings, both of which also have sentences by the Inter-American Court of Human Rights. When families of the victims were unable to obtain justice in Peru during the 1990s, they brought their claims to the Inter-American system. The Inter-American Court found the Peruvian state responsible for the crimes in both cases and ordered the state to investigate, prosecute and punish those responsible, and to provide reparations for the victims and their families. It also nullified the 1995 amnesty laws that prevented justice in such cases.

Viviana Krsticevic, Executive Director of the Center for Justice and International Law (CEJIL), which has been involved in the international litigation of these cases since the 1990s, noted that the Inter-American Court has not only limited the use of amnesties for the crimes against humanity committed in Barrios Altos and La Cantuta, but also other measures that impede the rights to truth and reparations for the victims, such as presidential pardons.

The Inter-American Court has a mandate to supervise the implementation of its sentences. At the request of human rights organizations, including APRODEH and CEJIL, the Court has convened a special session to review the Fujimori pardon at its headquarters in Costa Rica on February 2. Though the Court has never nullified a pardon, it is possible that it could do so in this instance, Krsticevic insists. “Fujimori has not cooperated with the administration of justice to establish the whereabouts of the disappeared or the responsibility of others in those crimes. He has not asked for forgiveness of the victims, survivors and family members, and he continues to deny the grave infringements of rights committed during his tenure,” she says. “Consequently, from the perspective of Peru’s international human rights obligations, the pardon is invalid and should be nullified by the Inter-American Court.”

Fujimori Pardon: Opening the Pandora’s Box

Peru remains a country divided. Public opinion is sharply split between those who believe Fujimori was an outstanding president who saved the country from terrorism and economic collapse, and those who view him as a dictator who used the country’s prostration to ensconce himself and his cronies in power, dismantle democratic institutions and repress dissent, and set up massive corruption schemes that robbed the country of billions of dollars.

When she learned that her father had been pardoned, Keiko Fujimori told the press: “This is a night of great happiness for our family, for fujimorismo. My father was deprived of his liberty for ten long years; finally justice has been done.” This is a radically distinct view of justice held by the victims of fujimorismo.

Late at night on January 4, 11 days after the humanitarian pardon was granted, Alberto Fujimori was released from the medical clinic he was being held in. New protests against the Fujimori pardon are scheduled for January 11. This story is just beginning.

Far from promoting reconciliation, as Kuczynski has asserted, the pardoning of Fujimori seems to have opened a Pandora’s Box that could lead to further confrontation and instability.